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The Legal Observer,



SATURDAY, JULY 19, 1856.



It was lately reported in the public journals, with some confidence, that the present session of Parliament would terminate on the 24th instant; but we think it is impracticable to dispose of the business before the House of Commons in less than ten days or a fortnight from this time. We shall briefly review the measures which have been already postponed. Of the remaining bills several, we believe, will yet receive the royal assent, but others, it is highly probable, will be withdrawn.

The measures postponed or negatived, relating to the administration of justice, are

1. The several bills for abolishing the jurisdiction of the ecclesiastical courts, relating to wills and administrations, and the establishment of a Probate Court. These several projects were introduced by Sir Richard Bethell, Sir Fitzroy Kelly, and Mr. Collier, and notwithstanding the coalition between these learned gentlemen, nothing has been done. Amongst the three stools, reform has come to the ground.

2. Abolishing some of the ecclesiastical local courts, namely, archidiaconal, peculiar and manorial, and transferring their jurisdic

tion to the diocesan courts. This would have

been an improvement (though an insufficient one), by diminishing the large number of these local courts.

3. Church discipline. This jurisdiction of the ecclesiastical courts, which the Lord Chancellor proposed to amend, was successfully opposed by the lords spiritual.

4. Procedure and evidence. This bill was introduced by Sir Fitzroy Kelly for the further improvement of the mode of proceeding in the common law courts, and the extension of the rules of evidence by admitting testimony not now receiveable. Though the bill has been read a second time and committed, no progress whatever has been made in committee, and it is evidently now too late to carry it through even the Lower House.

5. Mr. Locke King's Bill for Consolidating all the Statutes relating to the Summary Jurisdiction of Justices of the Peace has been withdrawn. The draft of the bill was preVOL. LII. No. 1,480.

pared by a country solicitor, and shows great care and diligence. These consolidations of numerous statutes into one are worthy of all encouragement.

6. The Qualification of Justices of the Peace Bill properly belongs to the administration of Justice, and if it had been passed, as proposed, would have enabled the Lord Chancellor to appoint, as county magistrates, Solicitors who abstained from practising criminal or sessions business.

troduced for the purpose of altering or improving the Rules of Law, apart from the mode of procedure in the courts. These are:

We come next to the bills which were in

7. The Amendment of the Law of Partnership, which has been proposed by two several the second was fatally damaged by a clause bills, the first of which was withdrawn, and carried against the Government by a small majority, to the effect of requiring all loans (the interest of which was dependent on the profits of the business), to be notified in the loans, and the names of the leaders! Unless London Gazette, with the amount of such

reversed, the bill was useless, and, of course, was necessarily withdrawn

this decision of the House could have been

been postponed was the bill for abolishing the distinction between simple contract debts and specialty debts in reference to the distribution of assets, but saving, of course, existing rights. The next class of postponed bills are9. Tithes commutation, rent-charges. 10. The abolition of church rates. 11. The amendment of the poor laws. 12. The public health.

8. Another alteration in the law which has

13. The burial laws.

All these bills it has been deemed expedient to withdraw, at least for the present session.

14. The proposition to alter the marriage law by repealing the prohibition of marriages with the sisters or nieces of deceased wives, was negatived by the House of Lords.

15. The bill proposed by Lord Lyndhurst for abolishing the oath of abjuration, by which the Jews are disabled from taking their seats in Parliament was negatived; and the other measure proposed by the Earl of Derby, which would have removed an objection to the form of oath, but left the question of Jewish disa



The Appellate Jurisdiction of the House of Lords.

bility untouched, was withdrawn as most unlikely to pass the House of Commons.

16. The City of London Bill, which, though not affecting the country in general, is in no small degree interesting to the metropolis, has also been withdrawn. The citizens have thus successfully opposed the plan of the commissioners, as embodied in the government bill, and there is some expectation that the municipal authorities will, before next session, propose a scheme of their own to remove some of the admitted defects in the constitution of that ancient and powerful corporate body.

17. The Appellate Jurisdiction Bill, though not actually withdrawn, has been referred to a select committee, and virtually, therefore, at this late season of the session, must be considered as negatived for the present.

18. The comprehensive scheme for appointing a public prosecutor, district prosecutors, agents, and official attorneys, remains in

4. Copyholds.

5. Judgments Execution.

6. County and Borough Police.
7. Married Women's Reversions in Per-
sonal property.

8. Intestates' Personal Estates.
9. Drainage of Lands.
10. Charitable Uses.
11. Charitable Trusts.

12. Evidence in Foreign Suits.

13. Stamp Duties on Articles of Clerkship
and Proxies.

14. Divorce and Matrimonial Causes.
15. Formation of Parishes.

16. Prevention of Corrupt Practices at

17. Criminal Justice Amendment.

have arrived, see Postscript.
For the several stages at which these Bills

select committee; and it cannot be expected THE APPELLATE JURISDICTION OF that any legislative measure can finds its way into either house till the next session.

Next may be mentioned various measures relating to different branches of the law, of which notice was given in the present session; but as yet the intended bills have not made their printed appearance. They are as



19. The Consolidation of the Law relating to Bills of Exchange, proposed by Sir F. Kelly.

20. The Consolidation of the Statutes relating to Offences against the Person, also proposed by Sir F. Kelly.

21. The Amendment of the Law of Trust Property, criminally misappropriated, to be brought in by the Attorney-General.

22. A Bill for the severer Punishment of aggravated Assaults, proposed by Mr. Dillwyn, the member for Swansea, and one of the county magistrates.

23. The appointment of a Minister of Justice was recommended by Mr. Napier.

24. An intended new arrangement of the Circuits of the Judges was notified by Mr. Collier.

25. The Salaries of the County Court Judges was intended to be taken into consideration at the instance of Mr. Roebuck.

26. Mr. Murrough renewed his notice for Amending the Property Qualification of Members of the House of Commons.

27. Last, though not least, the subject of Education was brought under the consideration of Parliament, but nothing practical effected.

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THE discussion recently raised respecting the appellate jurisdiction of the House of Lords has enabled all the enemies of the profession to indulge in the expression of their hostility. It would be well for the country if this important question of the highest appellate jurisdiction was well understood and conscientiously considered in Parliament. This

has not yet been its fate. Even the Attorney-General himself, receiving biassed information from some particular quarter, shewed a want of that accuracy of knowledge which is absolutely required for the discussion of such a question. He, no doubt, fancied, in pure honesty of belief, that a particular case to which he referred had been improperly decided in the House of Lords, and in that belief he referred to it as affording one illustration of the ineficiency of the tribunal. He has been completely misled. Never was there a more righteous decision -never could there have been a greater premium offered to fraud than would have been offered to it

had the decision been the other way.

Let us hear what the Attorney-General had been induced to believe, and then let us see what are the real facts of the case. The Attorney-General said"In a case mentioned in the evidence there had been

conflicting decisions given by the Court of Exchequer and the Master of the Rolls. There was an appeal from the judgment of the latter, and it was heard before two law lords: they differed; and the result was that the judgment of the Master of the Rolls was confirmed, notwithstanding the conflicting decision

of the Court of Exchequer." It is plain, from this mode of describing the case, that the AttorneyGeneral thought that the judges of the Exchequer must have been right, and the Master of the Rolls wrong. Had he been truly informed of the facts, there can be little doubt he would have been of an

The Appellate Jurisdiction of the House of Lords.

opposite opinion, and would have been so, even if the parties in the two courts had been the same, and their rights the same, and their title to the enforcement of their rights the same, no one of which circumstances was the fact. The case is that of Bosanquet v. Shortridge, in the Court of Exchequer (reported 4 Exch. Rep. 699), and Shortridge v. Bargate, in the Rolls Court (reported 16 Beav. 84), and Bargate v. Shortridge, in the House of Lords (reported 5 House of Lords cases, 297). The facts were these:

Shortridge was a shareholder in "The Newcastle, Shields, and Sunderland Union Joint Stock Banking Company," which was established under the provisions of the 7 Geo. 4. c. 46, and regulated by a deed of settlement. We need not refer to the provisions of the statute-any one can do that; and those of the deed have a more direct bearing on the case. Let us give a summary of them. The accuracy of our summary may easily be tested by a reference to the reports we have quoted. The affairs of the company were entrusted to the management of eight directors, who were to meet at least once in every three months, each meeting to be styled "a board of directors" (this little matter of style becomes of far more importance than might be anticipated). To every person approved by the board of directors as fit to be a holder of shares a certificate was to be given, signed by three directors. A share register book was to be kept, in which "the board of directors" alone had power to make entries. No person was to become, or be registered as, a shareholder, without the consent of the board of directors, testified by a certificate in writing, signed by three directors in the form mentioned in the deed, after which consent the new shareholder might require his name to be entered in the register book. No shareholder could inspect this book without express permission of "the board." If the directors refused consent to a transfer, they were obliged to purchase the shares, and funds were provided for that purpose. From the very beginning of their doing business the were signed by three directors in an irregular manner. It had been a custom for one director to receive and examine proposals, and to sign the consent, to which the signatures of the other two directors were afterwards added, the latter being often written by each director in his own house. Mr. Shortridge was a shareholder, and in July 1847, he desired to sell his shares; he found ready purchasers, for the bank was at the time in high credit. He sent to the secretary the necessary forms, and received the consents signed, apparently, in the proper manner. The transfers were made, his name ceased to be on the register book-his vendees' names were there; the directors made the statutory returns, declaring who had ceased to be shareholders, and who had become so in their stead; and the name of Shortridge appeared in the former of these returns, and the names of his transferrees in the latter. the end of 1847 the bank fell into difficulties, and then disputed the validity of two of the transfers Shortridge had made, which appeared to have been made to persons who, like the bank itself, had ceased to be in flourishing circumstances. All his transfers, those to these persons and those to the rest of his vendees, appeared to have been made in exactly the same manner and with exactly the same forms, so far at least as he was concerned. The London and Westminster Bank being largely in advance to the Newcastle, &c., Union, took proceedings, recovered

66 consents ""



judgment, and issued execution against several shareholders, but in the first instance not against Shortridge, whose name was not in the statutory returns at Somerset House, In January, 1848, the directors of the Newcastle, &c, Bank made an entry in their register book, declaring the transfers to Mr. and Mr. to have been irregularly made, and to be therefore void, and in March, 1848, sent in a fresh statutory return, in which Shortridge's holders. Bosanquet, the public officer of the London name was placed among those of the existing shareand Westminster Bank, then took proceedings by scire fucias against Shortridge, and in that way the case came before the Court of Exchequer, where it was held that Shortridge, not having literally complied with the terms of the deed of settlement in the matter of the transfer of shares, had not in law ceased to be a shareholder. The fact was that the consent had been given not by a "board of directors," —that is, at a meeting of three directors,-but the consent was signed first by the managing director at the office of the company, and then by two other directors at their private residences. There was no proof that Shortridge could have prevented or remedied this irregularity, or even that he knew of its having occurred, yet on this want of formality, which had been practised since the commencement of the company, the Court of Exchequer held him liable. The excuse for snch a decision, for it really does require an excuse, is that the party proceeding against him was a creditor, to defeat whose claims the most extreme strictness might be required.

After this decision Shortridge filed his bill in Chancery, set forth all the facts of the case, and prayed relief in the form of being indemnified by this Court against the demands of the London and Westminster Bank. The Master of the Rolls gave him that relief, and that was the decision brought by appeal before the House of Lords. We are pre

pared to say, and we think that any man of business would be equally prepared to say, that if a choice was to be made between the two decisions, that of the Master of the Rolls was the more in consonance with the needful regularity of business, and with the principles of justice. But there was no conflict between the two decisions. The liability to the creditor, indeed, was assumed in the prayer of the bill, which asked that the court should indemnify Shortridge against it. And who is there, that is adverse to the gross neglect of duties undertaken by directors of public companies, that would not at once agree that it would be the height of injustice to make Shortridge suffer for the systematic irregularities of the directors - irregularities which he could neither prevent nor remedy, nay, which it was impossible for him to know.

The Lords supported the righteous and sensible decision of the Master of the Rolls. There was not a real difference of opinion between the Lord Chancellor and Lord St. Leonards on the case, as the report in Vol. 5 of House of Lords Cases plainly shows. The Lord Chancellor was still somewhat under the influence of the impression which had produced his judgment in Bosanquet v. Shortridge, when he sat as a Baron of the Exchequer, but he expressly says that he is "ready to acquiesce in the conclusion which Lord St. Leonards has arrived. The judgment of the latter noble and learned lord was a masterly exposition of the doctrines of equity applicable to the case, and contained a clear and searching examination of all the authoritics which were deemed to have a bearing upon it.



New Statutes effecting Alterations in the Law.


Such is the case which is understood among the practitioners in equity to have been the "fons et origo," not perhaps "mali," but "inquisitionis;" and certainly when examined it bears no condemnatory aspect with regard to the House of Lords' jurisdiction. That the two noble and learned Lords did not entirely agree may be matter for regret, bnt cannot be matter for censure. Unanimity may be desirable in a court of ultimate appeal, but the attainment of it is impracticable, unless, indeed, some men must always surrender to others the mastery over their most serious convictions. Who would desire such a system? Who would not rather have a case left, as it stood below, through the honest differences of the appellate judges, than secure their unanimity by their mutual dishonest concessions. If a man really feels a strong opinion he is bound to express it, and, whatever may be the result, to adhere to it. justitia, ruat cælum-it is not because he sits in the ultimate court of appeal that he is to withdraw an honestly entertained conviction, so that he may produce an apparent though a hypocritical uniformity. On the contrary, it is emphatically because he sits there that, carefully weighing every fact and every argument-studiously applying his own mind to the subject, he should, without prejudice, examine the opposite opinion, and, without prepossession, canvass his own. Having done this to the best ot his ability, he is bound to adhere to that opinion which, after such an ordeal, shall appear to him to come out the purest, the clearest, and the most true. The cry for unanimity in an appellate court, because it is an appellate court, is absurd-if attained by any sacrifice of truth it would be fearfully mischievous; and it is plain that if it is to be shown in every case whatever, there must be such a sacrifice.

But then, says Sir James Graham, who is a con amore assailant of law and lawyers, the defective state of the appellate conrt is shewn by several cases, with which the public are familiar. His first instance is the O'Connell case. Sir James Graham assails it as a political de ision. It is one which has met with the general concurrence of the profession, those who first doubted it having come round to the belief that in principle there was no distinction between the rule for entering up judgment on an indictment containing many counts for different offences, and on a declaration in an action containing many counts founded on different causes of action. And be it remembered, too, that though the majority of the judges thought the objection to the judgment to be invalid, Mr. Baron Parke (a true and consistent Tory, too), as one of the minority, expressly declared the surprise with which he had at first heard the argument for that opinion which he afterwards adopted (11 Clark & F. 295). Surely, Mr. Baron Parke did not give up his old political opinions and his party sympathies to please the party to which he was opposed.

Then comes the case of the Presbyterian marriages.

As to this case, Sir James Graham, quite in error as to facts, plainly supposes that the Irish judges had given a judgment which the English judges had sustained, and that it was only by a happy accident that the House of Lords did not overturn both. The truth is, that the Irish judges gave no judgment. The Irish judges were equally divided in opinion. The case must, therefore, have rested without any decision, but "for the purpose of obtaining the o inion of this House, Mr. Justice Perrin, in form, withdrew his judgment" (10 Clark & F. 536); and thereupon the defendant was adjudged not guilty. Mr. Justice Perrin, who was for acquiting the pri soner, was the junior judge, and that alone was the cause of his withdrawing his opinion. The English judges were unanimous, and their opinion was delivered in a very able paper by Lord Chief Justice Tindal; and so the judgment thus obtained by acci dent, and for form's sake, in order that it might be discussed, entered in the Irish Court, stood affirmed But does all this shew the inefficiency of the Supreme Appellate Tribunal. Unless it is stated that that tribunal must be unanimous, under all circumstances and at all times, it shews the reverse. It shews the great difficulty of the cases argued there; the thorough nature of the investigations there, and the strong conviction which must exist in the minds of the able men who take part in the decisions, and who, however desirous to give all the weight which unanimity can confer upon their decisions, feel that, in some cases, unanimity is impossible, and that truth and sincerity must prevail over an, expedient it may be, but untrue, uniformity.

We have only time and space to notice and correct another mistake of Sir J. Graham, who says that Lord Truro "never pronounced a single judgment" in a Scotch cause. Geils v. Geils was an appeal from the Court of Session. It was decided, on the motion of the Lord Chancellor, on the 8th of May, 1851. Lord Truro was appointed Lord Chancellor in July, 1850, and resigned the Great Seal in February, 1852. Lord Truro also took part in the decision of Marianski v. Cairns, another Scotch case and we have little doubt that if we had the Scotch Appeal Reports before us we should find others which he had assisted in deciding.


18 & 19 Vict. c. 40.

The preamble recites the 17 & 18 Vict. c. 25, Recited act to apply to all societies constituted under the same, s. 1; time fixed by recited act for appoint ment of officers to sue and be sued extended, &?; certain appointments made by trustees confirmed; as to power of removing officers, s. 3.

Review: Dart's Vendors and Purchasers.

The following are the title, preamble, and sections of the Act :

An Act to amend an Act of the Seventeenth and Eighteenth Years of Her present Majesty relating to Industrial and Provident Societies.

July 7, 1856. Whereas by an act passed in the seventeenth and eighteenth years of her Majesty, chapter twentyfive, intituled An Act to amend the Industrial and Provident Societies Act, 1852, provision is made for the better conduct of legal proceedings in matters concerning societies constituted under the said act; and whereas doubts have arisen whether such provisions apply to societies so constituted after the passing of the seventeenth and eighteenth Victoria, chapter twenty-five, and it is expedient that such doubts should be removed, and that the said act should be otherwise explained: Be it therefore enacted by the Queen's most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. The act passed in the seventeenth and eighteenth years of her Majesty, intituled An Act to amend the Industrial and Provident Societies Act, 1852, shall apply to all societies which at the time of the passing of this act are or thereafter may be constituted under the Industrial and Provident Societies Act, 1852.

2. The time fixed by the second section of the seventeenth and eighteenth Victoria, chapter twentyfive, for the appointment of officers to sue and be sued by any such society shall be extended, in the case of any societies so constituted at the passing of this act for which such officers are not then appointed, to one calendar month after the passing of this act, and, in the case of any society to be constituted after the act is passed, to one calendar month after the date of certificate of registration of such society.

3. Any appointment already made by the trustees of any society constituted after the passing of the seventeenth and eighteenth Victoria, chapter twentyfive, of any member thereof as an officer to sue and be sued, of which a return has been made as is required by the said act, shall be taken to have been duly made under the second section thereof.

4. The right of removal given by the second section of the said act shall apply to any such officer appointed thereunder by the trustees of any society constituted under the Industrial and Provident Societies Act, 1852, as fully as if he had been appointed by such society.


19 & 20 Vict. c. 42.

An Act to continue the Act for the Exemption of
Stock in Trade from Rating.
July 7, 1856.

Whereas an act was passed in the fourth year of the reign of her present Majesty, intituled An Act to exempt until the Thirty-first Day of December One thousand eight hundred and forty-one Inhabitants of Parishes, Townships, and Villages from Liability to be rated as such in respect of Stock in Trade or other Property to the Relief of the Poor: And whereas the said act has been since continued by sundry acts until the first day of October in the year one thousand eight hundred and fifty-six; and it is expedient that the said act should be further continued. Be it


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MR. DART appears to have made a happy solution of the field of his learned labours, for the first edition of his "Compendium of the Law and Practice of Vendors and Purchasers" was published in 1851, the second in 1852, and he has now arrived at a third edition.

The plan of the volume is to present a concise statement of the law and practice consecutively arranged according to the order in which the several points arise in carrying out an ordinary contract from its commencement to its completion. The author then treats under appropriate heads of the several remedies where there has been a refusal, neglect, or inability to perform the contract, with the variations consequent on a sale by the Court of Chancery.

Mr. Dart observes in the preface to this new edition, that the toil of revising the work has been increased by an unusual amount of alteration in the statute law, and the accumulation of new decisions has been very extensive. Additional matter has also been supplied in the chapters on the preparation of the conveyance, and matters relating to the completion of the purchase.

To many of our readers it is scarcely necessary to state the scope of the volume, or the various topics of law and practice comprised within it; but to others it may be convenient to have a summary of this very important branch of professional business, and it is due to the author to shew the logical method he has adopted in the classification of his very comprehensive materials. The following, therefore, are the general heads of the work :—

1. Restrictions on the general capacity to buy or sell real Estate.

2. Sales by Fiduciary Vendors.

3. The relative duties of Vendors and Purchasers prior to the Sale.

4. The particulars and conditions of Sale.
5. The Sale and matters connected therewith.
6. The Agreement.

7. Effect of the Contract on the rights of the Parties.

8. The Abstract of Title.

9. The Production and Examination of the Deeds.

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